How to apply for spousal or de facto maintenance within NZ

Introduction

Applications for maintenance are made to the NZ Family Court. The following types of maintenance are now available under the FAMILY PROCEEDINGS ACT 1980 -

• maintenance during a marriage or civil union
• maintenance after a marriage or civil union is dissolved, or after a de facto relationship of at least three years has ended
• maintenance paid to a custodial parent by the other parent if they are not married or in a civil union

The FAMILY PROCEEDINGS AMENDMENT ACT 2001 changed the law from 1 February 2002 to place de facto relationships, in part, on the same footing as legal marriages in relation to maintenance. In April 2005, civil unions were established as a legally recognised form of relationship, and civil union couples were brought under the maintenance provisions in the Family Proceedings Act (by the CIVIL UNION ACT 2004).

Note that child support is an altogether different matter from spousal maintenance and is governed by separate rules (see How to apply for child support). However, spousal maintenance is collected and enforced by the Inland Revenue Department, which also administers child support.

General rule is that maintenance is temporary

When a marriage, civil union or de facto relationship ends, the general rule is that any maintenance paid by one spouse or partner to the other should be temporary only. Maintenance will be payable if certain conditions are met, but each party must assume responsibility, within a reasonable period of time, for meeting his or her own needs, and after that time no maintenance will be payable.

At what point can I apply for maintenance?

In the case of a marriage or civil union, you can apply for spousal maintenance -

• if you and the other person are still living together
• if you have separated, or
• if the marriage or civil union has been dissolved, provided you have not remarried or entered into a civil union or de facto relationship with someone else

However, the criteria you must satisfy are different depending on whether or not the marriage or civil union has been dissolved (see below).

In the case of a de facto relationship, you can apply for maintenance if you and the other person have stopped living together, provided you have not married or entered into a civil union or begun a de facto relationship with someone else.

When you apply for an order, both you and the other party will need to complete a form setting out your income, assets and expenditure.

Grounds for maintenance after a marriage or civil union is dissolved or a de facto relationship ends

After your marriage or civil union is dissolved or your de facto relationship has ended, you are entitled to receive maintenance from the other party for your reasonable needs if you cannot practicably meet all or part of those needs because of any of the following three grounds:

1. the ability of you and the other party to become self-supporting, taking into account -
   • the division of functions while you lived together (including, in the case of a marriage or civil union, during a de facto relationship that immediately preceded it)
   • the likely earning capacity of each party
   • any other relevant circumstances
2. the responsibilities of you and the other party for the ongoing daily care, after the end of the marriage, civil union or de facto relationship, of any minor or dependent children of the marriage, civil union or de facto relationship
3. the standard of living of you and the other party while you lived together
4. the fact that you are undertaking a reasonable period of education or training to increase your earning capacity or to reduce or eliminate the need for maintenance, if it would be unfair for you to have to meet the costs of this-
   • because of the division of functions during the marriage, civil union or de facto relationship, or because of arrangements for the care of children after it, or
   • because you previously maintained the other person, wholly or partly, while he or she was undergoing education or training

For the purposes of maintenance after a marriage or civil union is dissolved, the dissolution order does not have to be from a New Zealand court. An overseas order may be accepted, provided it is recognised in New Zealand.

Grounds for maintenance before a marriage or civil union is dissolved

If your marriage or civil union has not been dissolved, you are entitled to receive maintenance from your spouse or partner if you can show that you have a reasonable need for it based on any of the following grounds -

• any of the four grounds outlined above that apply to maintenance after a marriage or civil union is dissolved or after a de facto relationship ends
• any physical or mental disability
• you are unable to obtain work that is reasonable for you to do and that is adequate to provide for you

De facto relationships of "short duration" (less than three years)

In the case of a de facto relationship of less than three years, the court cannot award you maintenance unless it is satisfied -

• that either -
  • there is a child of the relationship, or
  • you made a substantial contribution to the relationship, and
• that not awarding maintenance would result in serious injustice to you

How does the court determine the amount to be paid?

In determining the amount of maintenance that should be paid, the court takes into account -

• the means of each spouse or partner, including-
  • potential earning capacity, and
  • means derived from any division of property between the spouses or partners under the PROPERTY (RELATIONSHIPS) ACT 1976 (see How property is divided when a marriage, civil union or de facto relationship ends)
• the reasonable needs of each spouse or partner
• the fact that the spouse or partner by whom maintenance is payable is supporting any other person
• the financial and other responsibilities of each spouse or partner
• any other circumstances that make one spouse or partner liable to maintain the other

The conduct of the person applying for maintenance may be relevant

In deciding whether one party is liable to pay maintenance, and how much, the court may consider -

• any conduct by the party seeking maintenance that amounts to a device to prolong the inability to meet his or her reasonable needs
• any misconduct of the party seeking maintenance that would make it repugnant to justice to require maintenance to be paid

In what form is maintenance paid?

The court may order maintenance to be paid as periodical payments or as a lump sum. In general the court prefers periodical payments.

Lump-sum maintenance can be ordered to be paid as a single payment or in instalments.

Separate right of custodial parent to maintenance by other natural parent

As well as maintenance during a marriage or civil union and maintenance after a marriage, civil union or de facto relationship ends, there is a separate right to apply to the Family Court for maintenance from the other natural parent of a child. This is distinct from any entitlement to child support.

This right entitles a natural parent of a child to apply for maintenance against the other parent if -

• the parents are not married or in a civil union, and
• the natural father is liable to pay child support (see How to apply for child support), and
• the applicant has, or has had, day-to-day care (custody) of the child

The period for which the order lasts is a matter for the court to decide. Typically, an order will cease to have effect if the applicant ceases to have day-to-day care of the child.

Further, an order will cease if the applicant later marries or enters into a civil union or de facto relationship, unless the order has already expired.

When will the court make a maintenance order against a natural parent?

The court can make a maintenance order against a natural parent if it is satisfied that -

• it is desirable to make the order in order to provide adequate care for the child, or to reimburse the applicant for having provided care for the child, and
• it is reasonable to make the order, taking into account:
  • the means of each parent, including their potential earning capacity
  • each parent's reasonable needs
  • the fact that the parent being asked to pay maintenance (the "respondent") is supporting any other person
  • each parent's financial and other responsibilities

If satisfied of those two matters, the court can order the respondent to pay, for a period that the court decides, either -

• a periodical or lump sum towards future maintenance of the applicant, or
• a lump sum for the past maintenance of the applicant

A parent will not be awarded maintenance based on that parent's own needs alone if he or she no longer has day-to-day care of the child.

The court can impose any conditions on the order as it sees fit.

Interim maintenance

The court may order interim maintenance when an application has been made for a maintenance order. This applies to maintenance during a marriage or civil union, to maintenance after the end of a marriage, civil union or de facto relationship, and to maintenance by a natural parent.

The court has a wide discretion in deciding whether or not to order interim maintenance and will base its decision on the particular facts of the case.

Interim maintenance can be paid only in periodical payments, not as a lump sum. Interim maintenance may continue for up to six months.

Voluntary maintenance agreements

If you and the other party make a voluntary maintenance agreement between you, this is binding according to the standard law of contract, and is therefore legally enforceable. But the existence of such an agreement does not prevent you applying to the Family Court for maintenance.

If there are children, your voluntary agreement can also be accepted and administered by the Inland Revenue Department under the CHILD SUPPORT ACT 1991 as fulfilling the liability of the non-custodial parent to pay child support. Again, acceptance of the agreement by the IRD does not prevent you applying to the court for a maintenance order.

Changes to maintenance orders and agreements

The Family and District Courts have a wide power to vary, discharge or suspend any existing maintenance order, and in doing so the court applies the same principles that govern the granting of an initial maintenance order.

If you both wish to vary a voluntary agreement that has been accepted by the IRD under the CHILD SUPPORT ACT 1991, you will need to get the IRD to agree to the variation.

Maintenance and the DPB

If you are a solo parent receiving the domestic purposes benefit, the other party's obligations to pay maintenance are suspended. However, this does not prevent you applying for a maintenance order and you may receive an order that will become effective once your benefit ceases.

Cautionary notes

• This area of law is complex and can be a minefield. You should therefore seek legal advice on how best to obtain maintenance. Legal aid is available for maintenance applications if you are unable to afford a lawyer: see How to obtain civil legal aid.
• Any existing or contemplated maintenance may be affected by proceedings dealing with the division of the property of the couple (see How property is divided when a marriage, civil union or de facto relationship ends).